Monday, October 29, 2012

Each year the authors of the Moot Problem for ICAM cook up perplexing problems On of my favorites this year is the claim by a buyer that goods were not fit for a particular purpose because they were produced by a firm associated with the use of child labor. Thus, the could not be sold for a profit. As far as we know, no children laid a hand on these particular shirts but buyers are up in arms nonetheless. Of course, there are many reasons an item may not be profitably sold that have little to do with a promise by the seller. So one has to look further than that and think about why they did not sell.

In some sense, does the fitness for a particular purpose warranty even apply to the signalling one does by wearing the item or the sense that one has done the "right thing." You might think about the Lance Armstrong situation. All those Livestrong shirts are the same as they were when you bought them. But, when you bought them you may have wanted to advertise your admiration for Lance. Or you were just happier with them because you like Lance. Are they now unfit for a particular purpose?

Of course, a little quirk is that they were perfectly fit when no one knew of the misdeeds. Are then unfit now simply because of new information?

Tuesday, October 23, 2012

Mark Twain once said, “Be careful when reading health books, you may die of a misprint.” While the risk of death does not seem likely from a commercial law book, lawyers, professors, and students should be wary of the things they read. A recent change to Regulation CC’s treatment regarding Next-day Availability of Funds as part of the Dodd-Frank Act should have the legal community taking a closer look at their codebooks.

The Expedited Funds Availability Act of 1987 (EFAA), implemented by the Federal Reserve's Regulation CC, sets standards for banks making funds deposited into accounts available for withdrawal, including availability specific schedules. Section 1086 of the Dodd-Frank Act amends the EFAA (requiring a conforming amendment to Reg. CC) to require depository institutions to make the first $200 of funds deposited by certain checks into an account available for withdrawal on the business day after the banking day that a deposit is received. See, Regulation CC 229.10(c)(1)(vi) (formerly $100); FDIC version of Reg. CC.

All moves along as expected thus far. In accordance with amendments, the U.S. Department of the Treasury sent out a bulletin to the Chief Executive Officers and Compliance Officers of all National Banks outlining the major changes. Officiously, the Department of the Treasury stated “National banks should make the appropriate changes to their practices, policies, and disclosures as necessary to comply with the statute by July 21, 2011, even if the changes to Regulation CC have not been adopted by that date.” While it appears that today banks are on notice regarding the Dodd-Frank change to the availability rules, the updated $200 rule remains absent from the Federal Reserve and FDIC current versions of Regulation CC published online.

The potential for confusion does not end there. Some of the latest editions of commercial law textbooks such as 2012 Fifth Edition of Lopucki, Warren, Keating and Mann’s Commercial Transaction: A System Approach have misprints in regard to the rule as well (retaining the $100 rule without comment). Even codebooks that reflect the $200 dollar rule before the regulators have officially put it into regulation are inconsistent. William Warren and Steve Walt’s Commercial Law: Selected Statutes for 2012-13 under section 229.10(c)(1)(vii) reflects the $200 rule with a footnote attribution to Dodd-Frank, but under the printed version of section 229.12(d) retains the reference to the former $100 available under section 229.10(c)(1)(vii).

With the Federal Reserve and FDIC not reflecting the $200 change to section 229.10(c)(1)(vii), as well as conforming amendments in other parts of Reg. CC, it is not surprising that the statutory codebooks and textbooks have had difficulty in conveying the amended rule. In the meantime, don't believe everything you read.

Tuesday, October 16, 2012

Snoop Dog may have his namesake in favor of Snoop Lion, but Bow Wow offers Uniform Commercial Code entertainment for those with a canine preference. Apparently, a lender had to repossess Bow Wow's Lamborghini. The original loan was in the amount of $300,165, with about $157,571 owing on the loan at the time of repossession. The bank managed to sell the car for $161,000, but had $25,000 in costs associated with the repossession and resale of the car. The bank sued the rapper for a deficiency of $21,371. See, Bank to Bow Wow.

UCC Article 9 directs the secured party to apply the proceeds from a disposition of collateral to the expenses of retaking, holding and preparing the collateral for disposition and then toward the obligation secured by the loan. 9-615. The debtor is liable for any deficiency after application of the proceeds. So, Bow Wow does in fact appear to owe the Bank the additional chow. One of my students found this case. Apparently, like me, he enjoys a little bit of Article 9 in action.

Saturday, October 13, 2012

When it comes to teaching remedies, it is easy to collapse doctrines onto one another that appear consistent in underlying theory. When it comes to the CISG (Convention on the International Sale of Goods) this conflation would be erroneous. A large number of American courts have held that where Article 2 and the CISG are similar in theory or language, that resort to Article 2 cases and provisions is an appropriate method for interpreting the CISG. This approach, though, would not be consistent with the Article 7 of the CISG's mandate theat “[i]n the interpretation of this Convention, regard is to be had to its international character and to the need to promote uniformity in its application and the observance of good faith in international trade." The unifority would not seem to be enhanced by American courts referring to Article 2, even though they are more familiar with its provisions. Quite simply, there is no expectation that courts of other countries would defer to Article 2 in any manner.

Rather, the better reasoned approach should be to consider interpretive sources that evidence this international perspective, which might be used individually or collectively toward deducing the meaning behind various CISG provisions. For instance, courts could accept that a specific source of general principles of contracts routinely informs CISG cases worldwide, such as those of the Unidriot Principles of International Contracts. Alternatively, the CISG Advisory Council Opinions could fulfill a stronger informative role regarding interpretation of provisions in the manner like the comments to the UCC do such that courts and commercial parties would regularly follow its interpretations in practice. Yet another alternative available in the fulfillment of the CISG’s mandate is consultation with decisions rendered by tribunals applying the CISG where such are available. Where such decisions are unavailable, insufficient, incomplete or unhelpful, though, UCC Article 2 might form part of the evidence of applicable private international law, as well as usages, customs and practices, but would not itself be the primary legal authority. The writings of scholars collecting opinions, examining theory and practice and providing careful analysis would also surely constitute sources expected for consultation in these cases just as in domestic ones.

This is not meant to state that Article 2 would never be part of the consideration of interpretation in CISG cases, but only that courts have overstated its usefullness. There is only a limited role for Article 2 in such cases where it forms part of a larger indication of international perspective or a portion of an applicable usage. This would be true even where the language in the CISG seems to track that of Article 2 or be otherwise similar in theory. An example of this would be CISG Article 74’s general directive regarding remedies provides that: "Damages for breach of contract by one party consist of a sum equal to the loss, including loss of profit, suffered by the other party as a consequence of the breach. Such damages may not exceed the loss which the party in breach foresaw or ought to have foreseen at the time of the conclusion of the contract, in the light of the facts and matters of which he then knew or ought to have known, as a possible consequence of the breach of contract." While American courts have ample experience with remedy considerations involing loss profits and foreseeabilty (Hadley v. Baxendale), it would be in error to solely rely on our perspective for these doctrines that are entrenched in our own legal history and perspective. The better view is that our perspective simply is part of a larger understanding of these doctrines where it is consistent with the international perspective.

Friday, October 12, 2012

Over the summer, I posted about the high cost of law school textbooks for students (Why Would You Assign). My current book for Contracts was being updated and the new edition would cost my students $180+. With the cost of law school somewhere near $150,000 (See For Law Schools, a Price to Play the A.B.A.'s Way, New York Times) I find it difficult to add to that cost any more than necessary. That means, choosing free books for students where they are available. CALI's ELangdell program does just this by paying professors who write textbooks a stipend and then giving the books to students in Word, Mobi, PDF and Epub formats for free.
So, why is the message not getting through.

I receive the messages posted to the Contracts list-serve daily and this topic came up again. Professor Jeff Harrison (U Florida) initiated a lively discussion with the following post:

Is the market for casebooks working? I like the George/Korobkin casebook which was just published. I thought I would use it until I saw the price --$186. I really cannot see asking my 100+ students to pay this. Even if they get $40 for selling their used copies, it's too much given what is otherwise available. Put differently, how is it possible that any contracts casebook would have enough market power to profitably sell at this price?
One explanation is similar to that with physicians. The people who demand the books are not the same as those paying for them. So the professor assigns a book and is sheltered from the impact. Related to this is the possibility that professors are too lazy to change books. So, suppose you have been using Farnsworth for 20 years and when a new edition comes out you assign it because you want to minimize preparation time.
The economics of casebook publishing puzzles me. First, the breakeven point must be tiny. Second, the pricing seems based on a belief that there is some market power when there should not be.

Well said. A number of responses ensued ranging from students will buy the new hardcover book no matter what the cost even if given the choice of something less costly (indicating that this might not be ripe for concern) to arguments in favor of jettisoning the traditional books in favor of other alternatives without delay. To me, this seems to be a question of leadership. As professors, we should care about the cost of legal education. If there is not sufficient incentive to add to the cost of the students (much of which is financed through student loans), we should decline to do so in favor of viable alternatives. There is no good reason that I can see to lead students down the path of higher costs even if they would willingly pay when most of the cost is incurred by the student as debt that will take them years to pay off.
Again, can we justify asking law students to pay for something that is not necessary?

Thursday, October 11, 2012

I just finished an essay on the economic loss doctrine (available on SSRN at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2160298). I had a chance to talk to one of the law review editors that had been working on the piece and a discussion ensued. Surely, he understood that the modern application of the judicially-created economic loss doctrine redirects some purchasers of defective goods away from an action in tort for negligence orstrict liability against a product manufacturer. What is less widely understood is how this is actually done in by courts. Moreover, whether courts provide a defensible rationale is yet another problem.

Quite simply, modern application of the economic loss doctrine has proven esoteric at times, as fittingly illustrated by the case of In re Chinese Manufactured Drywall Products Liability Litigation (the “Chinese Drywall Litigation”), 680 F. Supp. 2d 780 (E.D. La. 2010), which
involved installation of defective Chinese drywall in certain homes built
after Hurricanes Katrina and Rita. In a seeminglystrange argument, the defendants argued that only some of the purchasers of the drywall should be able to make tort claims that arose from the same defective drywall. The odd part about the argument was that it was based on the manner of purchase made, with an attempt to categorize purchasers (an by extension, application of the economic loss doctrine to preclude tort claims) as: 1) those who purchased the Chinese drywall directly from the
manufacturer and then installed it in their homes; and (2) those who purchased
a home, which had been built (or rebuilt) with Chinese drywall.

While the court did not invest in this type of distinction, the decision surely left open the demarcation between the inner-workings of Article 2 remedies and tort doctrine. Essentially, how do we define the product purchased by buyers when it might be installed in a larger unit, like a home. My Essay concludes that modern application of the economic loss doctrine serves the desired purpose to preserve the boundary between tort and contract, but surely there must be a less obscure approach that lends greater surety to parties and which does not require judicial intervention in most cases. Evaluating both the product attributes and the gravamen of the claim yields a basic tool that is more principled in application than an approach dependent on only one portion of the analysis, as has been done on an ad hoc basis by some courts. This would seem to involve an examination of the rationale for limiting Article 2 claimants to statutory remedies and being satisfied that, in true bargain cases, this is sufficient. While it appears that the Chinese Drywall court came to an acceptable resolution in the case, the failure of the court to embrace a meaningful methodology continues to leave litigants with less certainty as to the nature of permissible claims. Closer examination of the deal in fact made by the parties would seem to permit resolution in these types of cases.

Wednesday, October 10, 2012

Jim Chen has invited me to post a note from time to time on the International Commercial Arbitration Moot. This is my tenth year of coaching, along with Tom Hurst and now George Dawson, the Florida team What follows are my initial impressions of this year's problem. Please feel free to disagree, clarify, whatever. I do not regard myself as a CISG scholar and, as you know, the problems are always composed of mind-numbing combinations of dates, amounts, exhibits, statements, and issues.

Following the normal formula there are procedural issues and substantive ones. This year the procedural issues seem a bit less significant than in the past but no less sticky. One deals with the use of a statement by an unavailable party. Another has to do with the consequences of a possible Article 96 reservation and its application to a modification.

For Vis veterans the principle substantive issue will be familiar. Remember the wine problem from a few years ago? The wine may or may not have been laced with anti freeze or something related to antifreeze. Or maybe antifreeze was only in the trucks transporting the wine. In that case, problems came up when the possibility was publicized and the buyer decided it was not what was promised.

Now we have an ethically minded buyer who purchases polo shirts for resale but discovers they may or may not have been produced with child labor. This leads to a claim that the shirts are unfit and that a fundamental breach has occurred. Like the wine problem from a few years ago, there is actually nothing physically "wrong" with the shirts except that now, with the bad publicity, they cannot be sold as profitably and without damage to the reputation of the retailer and its parent company.

It's all rather nasty and definitely fun. The problems reveal themselves over the months before the competition. Each day the students and the teachers seem to find a new twist or theory. It's additive.

(The shirts in the pic are Fred Perry. As far as I know the are manufactured by non child labor and by vegetarians who recycle.)